TaxTMI 
TaxTMI 
2023 (7) TMI 778
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....quired under Para 2(b) of the Notification No.102/2007-Cus. Dated 14.09.2007 to the effect that "No credit of the additional duty of customs levied under sub-section (5) of Section 3 of the Customs Tariff Act.1975 shall be admissible" on invoices and (ii) that they have not accounted the SAD amount in 2008-09 and the correction was made in the accounting year 2009-10 by showing the SAD due amount as receivable in their books of account. 2. Aggrieved by the said order, the appellant filed an appeal before Commissioner (Appeals) and learned Commissioner (Appeals) has rejected the appeal on the ground of non-compliance of the conditions of the Notification and discharge of the onus of unjust enrichment. Aggrieved by the said order, present appeal is filed. 3. The learned counsel submitted that the appellants have not availed any CENVAT Credit of the CVD or SAD paid on the imported goods. The goods were sold to Government of India undertaking M/s Power Grid Corporation of India Ltd., (PGCIL) for a power project. Since business activity of the appellant is not registered under Central Excise as a manufacturer or a registered dealer, no person can avail CENVAT Credit on the basis o....
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..... The appellant has paid SAD at the time of importation and they also paid Sales Tax/VAT while selling these goods and therefore, the appellant is rightly entitled for the benefit of refund under the aforesaid Notification subject to the bar of unjust enrichment. It is a settled position in law that, substantive benefit of an exemption notification should not be denied on the ground of procedure or technical infraction. Further, on an identical matter, this Tribunal in the cases cited supra have held that refund would be admissible even when a declaration envisaged under para 2(b) was not made on the invoices issued. Following these decisions, in the present case also, we hold that the appellant is eligible for the refund of duty as per Notification No. 102/2007-Cus. subject of course to the test of unjust enrichment." 5. Similarly the Hon'ble Tribunal in the matter of M/s Chowgule & Company Pvt. Ltd. Versus Commissioner of Customs & C. Ex. Reported as 2014 (306) E.L.T. 326 (Tri.-LB) held as below:- "5.3 In the Mangalore Chemicals and Fertilizers Ltd.'s case (supra), the Hon'ble Apex Court observed that a distinction, between the provisions of a statute which ar....
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....Customs, Bangalore (Supra). The Tribunal held as below:- "5. On the other hand, the Learned AR defended the impugned order. 6. After considering the submissions of both the parties and perusal of the material on record, I find that the only ground on which the SAD refund has been rejected is that the amount of refund has not been shown in the receivables in the accounts of the appellant. Further I find that as per the Notification No. 102/2007 and also the subsequent Circular No. 18/2010, dated 8-7-2010, it is not the requirement at all that the said claim should be shown as receivables in the books of account. Further I find that Board circular has clarified that field formations need not insist on the production of audited balance sheet and Profit & Loss Account and the certificate of the CA is sufficient to grant the refund claim. In the present case, the CA certificate was produced but the same was not considered. Further I find that in view of the various decisions relied upon by the appellant which clearly states that refund should not be denied merely on technical violations. In view of the above circumstances, I am of the view that the impugned order rejec....
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....ch refund claim has been filed. The appellant further submits that the price of the products sold by the appellant was decided way back in the year 2008 and it has been clearly agreed and understood between buyer and the seller that no other taxes other than Octroi and entry tax would only be charged and reimbursed by PGCIL. Learned counsel further submitted that the Assistant commissioner vide OIO No.145/2011 (AC-Refunds) ACC dated 14.06.2011 has sanctioned the refund of SAD of Rs.38,81,529/-. The price of the goods in the case, where the refund has been sanctioned and, in the case, where the refund has been rejected (covered under the impugned order) remain the same. In the said case also the appellant has supplied the goods under the same Letter of Award (LOA) to PGCIL. The appellant has enclosed copy of invoice No.1441 relating to the case, where refund was sanctioned and invoice No. 1449 relating to the impugned order, where refund has been rejected. The order reference in both the invoices is one and the same and the price of items having common description remain same. 9. The learned AR appearing on behalf of the respondent reiterated the findings in the impugned order an....